In Southern Union Co. v. United States, by a vote of six to three, the Court held that the Sixth Amendment right to jury trial prohibits a court from basing the amount of a non-petty criminal fine on facts found by the court but not encompassed by the jury’s verdict. The majority and dissent differed in their interpretations of the historical record regarding the comparative roles of judge and jury in determining the amount of fines in criminal cases, as well in the importance that should be placed on predicted effects of the holding.

A jury convicted Southern Union of storing liquid mercury without a permit in violation of the Resource Conservation and Recovery Act (RCRA). The authorized punishment for an organizational defendant is “a fine of not more than $50,000 for each day of violation.” The verdict form indicated that Southern Union engaged in the prohibited behavior “on or about September 19, 2002 to October 29, 2004.” Southern Union asserted that the court’s instructions allowed the jury to convict if it found even a one-day violation. It argued that Apprendi v. United States, which held that the Sixth Amendment “reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases” the maximum sentence, limited the fine to $50,000. The District Court agreed that it was bound by Apprendi, but concluded that the “content and context of the verdict all together” supported a finding that the violation continued for 762 days. This conclusion would have allowed a fine of $38.1 million, and the court imposed a fine of $6 million. On appeal, the First Circuit rejected the trial court’s interpretation of the jury findings but affirmed the sentence on the ground that Apprendi does not apply to criminal fines.

The majority and dissent agreed that to resolve whether Apprendi controlled who should determine the number of days of violation, the Court had to examine the historical roles of judge and jury in determining the amount of a criminal fine. They disagreed, however, in two important respects.

First, the majority and dissent read the historical record differently. The majority noted that some crimes imposed no upper limit on fines, while others capped the maximum fine by statute. Judges exercised sentencing discretion under these statutes consistent with Apprendi as long as the judge stayed within the statutory range, if any. Where the crime did require specific factual findings to support the amount of the fine, however, the predominant historical practice was to have the jury make those findings. The dissent disagreed with this reading of history, asserting that the “relevant historical question” was whether, in general, judges or juries determined fine-related sentencing facts. Distinguishing the cases where juries determined fines as being outside the normal criminal practice or the pertinent historical period, the dissent concluded that criminal fines were normally up to the court.

The majority and dissent also disagreed on the importance of considering the effects of applying Apprendi to fines. Such practical effects had played a large role in the Court’s decision in Oregon v. Ice, and the dissent thought the same should be true here. Thus, the dissent bolstered its position by predicting that applying Apprendi to fines would hinder legislative attempts to reduce sentencing disparity, cause confusion, and harm defendants in a variety of ways, and that these effects would particularly undermine state sovereignty. The majority, in contrast, emphasized that legislatures can constrain sentencing discretion as long as they do so in conformance with constitutionalstandards. It pointed out that previous cases in the Apprendi line had rejected concerns about harm to defendants. And it saw any problems caused by its holding as falling equally on the states and the federal government.

Courts will have to resolve a number of potentially thorny issues as they begin to apply Apprendi to fines. First, the Court noted that the Sixth Amendment right to jury trial does not apply to petty offenses, and courts will have to determine the line between insignificant and substantial criminal fines. More significant, perhaps, is deciding whether Apprendi affects other monetary criminal sanctions such as restitution; the Court suggests that it does apply to any “penalt[y] inflicted by the sovereign for the commission of offenses,” and language in the dissent also may support extending Apprendi to restitution. And then there are those practical effects mentioned by the dissent. Courts and prosecutors will have to work out ways to get jury determination of salient facts, such as special verdicts or separate counts. Juries will have to be instructed regarding evidence relevant to sentencing but not to guilt or innocence per se, or courts will have to bifurcate trials. Prosecutors may have to delay bringing charges until they have the detailed evidence they need to get the fines they consider warranted. There are many ways to address these practical problems, and we can expect an interesting variety of responses by courts and legislatures.

Plain English Summary:

The Court held, by a vote of six to three, that the Sixth Amendment right to jury trial requires a jury, not a judge, to determine facts that could increase a non-petty criminal fine above the amount warranted by the jury’s verdict alone. Thus, where the jury’s verdict supported a fine of $50,000 for one day of violation but the court imposed a fine of $38.1 million for 762 days of violation, the case was remanded for further proceedings.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.